Perth Museums - Part 2 limitations and exceptionsPresentation Transcript
PART 2 EXCEPTIONS AND LIMITATIONS Study study by lethaargic http://www.flickr.com/photos/lethaargic/3660097148/ Fair dealing Flexible dealingLibrary and archival copying Consumer copying
Use of a copyright work in one of the ways exclusively reserved for the copyright holder (i.e. reproduction, publication, communication) without their permissionwill be an infringement of copyright...unless a limitation or exception applies.
Limitations 1. Duration of copyright - first of all, has the work beenpublished? And if so, calculate its copyright term limit(Generally 70years after the death of the author). If the material is out ofcopyright it is in the public domain and available for free use and re-use. What about unpublished works? 2. Threshold for material to be copyright – authorship, material form, originality 3. Statutory licences – removing the need to obtain permission to use certain works (educational institutions, Commonwealth agencies)
Exceptions – private copyingNot available to organisations or institutions –‘private and domestic use’Time shifting - recording TVprograms or radio to watch orlisten to at another timeFormat shifting - i.e. scanningphotographs to put on a CD;converting CD to digital files***Shifting music between devices(‘the iPod exception’) – ‘spaceshifting’ iPod touch – My PDA by MJ/TR http://www.flickr.com/photos/mujitra/3516968781/
Exceptions – Fair DealingAllows use of a work for:Research or study (s40) – with limits on amount of the work that can bereproducedCriticism or review (s41) – must involve analysis or critique of the work –cannot be merely illustrative.Parody or satire s41A) – must offer comment on the workReporting of news (s42)As well as professional legal privilege andjudicial proceedings
Fair Dealing for research or study (s40)Certain quantities are ‘deemed’ fair:Hardcopy = 10% of pages or 1 chapterElectronic = 10 % of words or 1 chapterPeriodicals = 1 article (more than 1 if it relates to thesame research or course of study)If you wish to copy more, or are copying an artistic work- need to consider a number of factors to decide if it’sfair.
Fair Dealing for research or study (s40)Factors to consider include:•the purpose and character of the work•the nature of the work or adaptation•the possibility of obtaining the work within a reasonable time at anordinary commercial price•the effect of the dealing upon the potential market for, or value of, thework or adaptation; and•in a case where part only of the work or adaptation is reproduced; theamount and substantiality of the part copied /taken in relation to thewhole work or adaptation.NOTE : THIS DOES NOT APPLY TO AUDIO VISUAL MATERIALAND THERE’S NO GUIDANCE FOR COPYRIGHT IMAGES (ARTISTIC WORKS) –NEED TO CONSIDER ALL THE FACTORS BEFORE COPYING
Other Exceptions – Fair DealingAllows use of a work for:Criticism or review (s41) – must involve analysis or critique of the work –cannot be merely illustrative.Parody or satire s41A) – must offer comment on the workReporting of news (s42)As well as professional legal privilege andjudicial proceedings Can I insert a picture of TV show The Panel here to illustrate the Federal Court proceedings?
Crown copying exception - section 183Certain Commonwealth, State and Territory government bodies canuse any copyright materials provided the purpose is for the service ofthe Commonwealth, State or Territory.Who?•Commonwealth, state and territory departments – it does not apply tolocal governments•Some government agencies and statutory bodies (may need legal advice)•Educational purposes within educational institutions specifically excluded.For the services of governmentCould non-government libraries/archives ever use s183? Couldeducational institutions use s183 for non-educational purposes?
Exceptions – Library and Archival copying(Remember! definition of ‘archive’ includes museums, galleries)User copying (s49)Inter library/archive loan (s50)Unpublished works (s51 and 110A) – 50 years after the creator’s death,archives can make copies of unpublished works, sound recordings and filmsfor the purposes of research or study or with a view to publication. s52 – unpublished work where the creator is not known not an orphan works exceptionPreservation copying (s51A for works, s110B for films, sound recordings) –only if a copy cannot be obtained within a reasonable time frame atordinary commercial price, for limited uses and reasons‘Key cultural institutions’ and special preservation copying exceptions –only available to libraries with a mandate to develop and maintain acollection (i.e. NAA, NFSA, state libraries).
Copying unpublished works50 years after the year the creator died:If library or archives has an unpublished literary, dramatic ormusical work, photograph or engraving, or recording or film The library can reproduce or communicate the work to a userfor the purpose of research or study Can be published in limited circumstances - when you don’tknow who the owner, you must put a notice in theGovernment Gazette.(s51, s52 & s110A)
Preservation CopyingTo preserve manuscripts or original artistic works against loss,damage, or deterioration or to provide a copy for research atanother library or archives*To replace a published work that has been damaged ordeteriorated, lost or stolen*For ‘administrative purposes’: purposes directly related to thecare or control of the collection*Subject to the ‘commercial availability’ test
Preservation copying for key cultural institutions Allows ‘key cultural institutions’ to make up to 3 copies from the work for the purpose of preserving against loss or deterioration.
Exceptions – Flexible Dealing (s200AB) Available online at: http://www.digital.org.au/alcc/resources/documents/ Also: Copyright in Cultural Institutions Group ‘Flexible Dealing and Cultural Institutions’ http://nma.gov.au/shared/libraries/attachments/abou
Exceptions – Flexible Dealing (s200AB)• Is the use allowed under another section of the Copyright Act? Fair dealing, library and archival copying, statutory licence, consumer exceptions, section 183• For the purposes of “maintaining or Berne – Federal Parliament Square by Kecko http://www.flickr.com/photos/kecko/5765572304/ operating” the library or archives? Or for “educational instruction”?• Does the use meet the requirements of s200AB? The use must: • Not conflict with normal exploitation of the work; • Not unreasonably prejudice the copyright holder; and • Be a special case.
Providing online public access to collection material? Apply the 3 step test Make sure the use does: • Not conflict with normal exploitation of the work; • Not unreasonably prejudice the copyright holder; and • is a special case.Digital Archive, Boston Institute of Contemporary Art by Peter Alfred Hesshttp://www.flickr.com/photos/peterhess/5806305467/
Section 200AB and barriers to placing material online • Digitisation involves circumvention of TPM; • Commercial availability of works • Existence of a licence? Example: Placing thumbnail images online
Format shiftingWhere not covered by preservation copying or consumer exceptions The use does: • Not conflict with normal exploitation of the work; • Not unreasonably prejudice the copyright holder; and • is a special case.VHS Heaven...or Hell by makelessnoisehttp://www.flickr.com/photos/makelessnoise/203559383/
Locating the copyright holderBefore turning to the three step test under s200AB, youneed to demonstrate you’ve taken reasonable steps tocontact the copyright holder:“reasonable steps”– considerations: • Nature of the work – commercial or non- commercial • Age of the work • Published or unpublished work • Potential concerns of the creator – deceased, alive, interests of the estate • Extent of the planned use • Reasonable enquiries of others • Common sense
Orphan WorksAfter taking reasonable steps to locate the copyright holder The use does: • Not conflict with normal exploitation of the work; • Not unreasonably prejudice the copyright holder; and • is a special case. Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne University of Technology http://images.swinburne.edu.au/handle/1111.1/3343
Orphan Works – Large scale uses and “special case”Where collection consists predominantly of orphan works Scalable search: • Conduct reasonable enquiries into a proportion of the collection • “reasonable enquiries” - considerations from previous slide Eaglebrook School Archives, the 1960s by Eaglebrook School http://www.flickr.com/photos/eaglebrook/5549951920/
Orphan Works Reproducing orphan works ‘in good faith’. Swinburne University Orphan Works statement: ‘The University is continuing to endeavour to trace the copyright owner(s) and in the meantime this item has been reproduced here in good faith. We would be pleased to hear from copyright owner(s).’Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne Universityof Technology http://images.swinburne.edu.au/handle/1111.1/3343